Will a probationary dismissal be sustained if the probationer fails to sustain her burden that bad faith exists or that the termination was for an improper reason?

Yes. Petitioner, a probationary teacher, was dismissed based upon an investigation finding that she had neglected her duties and falsified records. She brought an Article 78 proceeding and Justice Alice Schlesinger of the Supreme Court, New York County reinstated her.

The City appealed and argued that petitioner had failed to exhaust the grievance procedure and that there was a sufficient basis to dismiss the petitioner since probationers can be dismissed for “almost any reason, or for no reason at all,” as long as it is not “in bad faith or for an improper or impermissible reason.”

The Appellate Division, First Department agreed finding that “[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden.”

While there was a delay in the issuance of the investigator’s report, the Court held that petitioner had been given timely notice of the allegations.

IN RE ANNA FINKELSTEIN, Petitioner-Respondent, v. BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, ET AL., Respondents-Appellants. 3959, 101540/14. 2017 NY Slip Op 03850 Appellate Division of the Supreme Court of New York, First Department. Decided May 11, 2017.


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